Home Building & Loan Ass'n of Memphis v. Graham

• Citation: 296 S.W. 10
• Parties: HOME BUILDING & LOAN ASS'N of MEMPHIS v. GRAHAM, Comptroller, et al.
• Decision Date: 15 July 1927
• Court: Supreme Court of Tennessee

296 S.W. 10

HOME BUILDING & LOAN ASS'N of MEMPHIS v. GRAHAM, Comptroller, et al.

Supreme Court of Tennessee.

July 15, 1927.

Appeal from Chancery Court, Davidson County; John R. Aust, Chancellor.

Suit by Home Building & Loan Association of Memphis against Edgar J. Graham, as Comptroller, and others. From a decree sustaining the demurrer and dismissing the bill, complainant appeals. Affirmed.

Nathan Cohn, of Nashville, and Wilson, Gates & Armstrong, of Memphis, for Building & Loan Ass'n.

W. F. Barry, Jr., of Nashville, for Graham.

McKINNEY, J.

Complainant paid the excise tax, as provided by chapter 21 of the Acts of 1923, under protest, and instituted this suit to recover same upon the theory that the excise tax statute was repealed, by implication, by section 8 of chapter 134 of the Acts of 1925, the portion of the section involved reading as follows:

"That every building and loan association incorporated, organized or doing business under the laws of this state shall pay to the commissioner of insurance and banking, direct, a specified privilege license tax, in lieu of both privilege and ad valorem taxes, upon its capital actually paid in, whether derived from installment or any other class of shares, and also in lieu of all taxes upon shares in the hands of its shareholders, which tax shall be paid as follows, to be paid directly to the commissioner of insurance and banking."

The governing criterion in such cases is the legislative intent, and we have no hesitancy in saying that, by the enactment of the section involved, the Legislature did not intend to repeal the act of 1923.

In Camden Fire Insurance Association v. Haston, 153 Tenn. 675, 284 S. W. 905, the general principle here involved was considered and decided adversly to complainant's contention.

The act of 1923 is special in character, while that of 1925 is a general revenue act, and we have been referred to no case where this court has held that a later general law repeals an earlier special one by implication. On the other hand, a contrary rule was announced and applied in Zickler v. Union Bank & Trust Co., 104 Tenn. 277, 57 S. W. 341; Burnett v. Maloney, 97 Tenn. 705, 37 S. W. 689, 34 L. R. A. 541, and Iron Cos. v. Pace, 89 Tenn. 707, 15 S. W. 1077.

An exception to the foregoing rule, based upon express legislative enactment and judicial interpretation, is well established in this state to the effect that, where a tax is laid in favor of the state, in a general revenue bill, followed by the clause "in lieu of all other taxes," that county and municipal taxes are thereby excluded, and a statute specially authorizing the municipality to impose such a tax is repealed by implication. We are not disposed to extend this rule of repeal by implication to a special statute of exacting revenue for the state, particularly to cases where, in our opinion, no repeal was intended.

The repugnancy between two statutes must be very plain and incapable of reconciliation before the court will apply the doctrine of repeal by implication. Durham v. State, 89 Tenn. 728, 18 S. W. 74; Frazier v. Railroad, 88 Tenn. 140, 12 S. W. 537.

The act of 1923 deals only with corporations and joint stock associations who are required to pay an excise tax (privilege tax) of 3 per centum of their net earnings. It further provides that such corporation or joint-stock association "shall be entitled to a credit for all amounts so paid during the preceding twelve months under section 6,...